Nafees Ahmed vs Lieutenant Governor Of Delhi & Ors
2017 Latest Caselaw 4842 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of Judgment: 07 th September, 2017
+       W.P. (C.) No.5612/2017
        NAFEES AHMED                                             ..... Petitioner
                            Through :    Mr.S.N.Gupta, Adv.

                            versus

        LIEUTENANT GOVERNOR OF DELHI & ORS ..... Respondents
                     Through : Mr.Pankaj Sinha, Adv. with Ms.Jubli
                               Mamolia & Mr.K.K.Mishra, Advs. for
                               R-1, 2, 6 & 7.
                               Mr.Mukesh Gupta, Standing Counsel,
                               SDMC with Mr.Abhishek Sharma,
                               Adv. for R-4 & 5/SDMC.

CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE CHANDER SHEKHAR

G.S.SISTANI, J. (ORAL)

1. This is a petition under Article 226 of the Constitution of India filed by the petitioner seeking an appropriate writ, order or direction to the respondents not to disturb the operation of chef-cart of the petitioner at the site, i.e. opposite Gaushala, near Maternity Hospital, Najafgarh Road, Delhi, up till 31.03.2019, i.e. the date upto which the licence fee has been paid, and also for release of the chef-cart and the goods of the petitioner which are in illegal custody of the respondents.

2. According to this petition, the petitioner is running a chef-cart under the name and style of M/s Yum Yum Foods. Earlier, the chef-cart was being operated by the petitioner near MCD Park, Tagore Garden, New

Delhi. The petitioner claims to be running the same under the licence which was valid up to 31.03.2016. It is claimed that in the year 2015, the petitioner was advised by the officials of the SDMC that he should change the site of his chef-cart and choose out of the available sites and should opt for the site opposite Gaushala, near Maternity Hospital, Najafgarh Road, Delhi. Accordingly, the petitioner applied for a change of site and also applied for renewal of his Municipal Health Trade Licence. NOC was granted by the Delhi Traffic Police for operation and shifting of the chef-cart.

3. The petitioner also claims that he applied for renewal of the operation of the chef-cart at the new site and the licence was renewed and is valid up to 31.03.2019 and accordingly, the petitioner deposited the amount of Rs.75,010/- on 22.07.2016 as demanded by the SDMC. A copy of the receipt dated 22.07.2016 has been placed on record.

4. It is also the complaint of the petitioner that in the month of July, 2016, some officials from the office of the SDMC, PWD along with some police officials came to the site of the petitioner and threatened that the chef-cart is illegal and is liable to be removed. The petitioner claims to have showed all the required permissions and documents to the said officials and also addressed a communication dated 24.07.2016 to the PWD, concerned SHO, SDM and the Traffic Police. However, on 13.06.2017, the area SDM along with some officials from PWD, SDMC and Delhi Police officials came to the site along with a JCB machine (crane). Despite the petitioner raising a protest that he had all the valid licences and permissions, the officials with the help of crane dragged the chef-cart to the middle of the road and

thereafter, damaged the chef-cart and the goods of the petitioner. The petitioner was not even allowed to remove his goods and belongings from the chef-cart. A photograph filed at page 55 of the paper-book is relied upon.

5. Learned counsel for the petitioner submits that the aforesaid action was taken in a high-handed, illegal and arbitrary manner. The conduct of the officials of the respondents is capricious as without any show- cause notice and despite a valid licence in favour of the petitioner. The petitioner seeks release of the chef-cart and a direction to grant him permission to carry out his business activities pursuant to the licence already issued. The petitioner has also claimed Rs.5 lacs for the loss and damage caused to him.

6. Counter-affidavit has been filed by the SDMC/respondents No.4 & 5.

According to the counter-affidavit, a joint STF drive for removal of encroachment was carried out by SDM, PWD, Delhi Police and SDMC. During the removal of the chef-cart, the petitioner did not show any licence to the raiding party and accordingly, the chef-cart was removed. It is submitted that no licence has been granted to the petitioner by the Zonal Office, SDMC at Najafgarh and the petitioner had a licence which was valid up to 31.03.2016, for the site near MCD Park, Tagore Garden. The SDMC, however, admits that for the present site, an approval was granted from 01.04.2016 to 31.03.2017. It is also stated in the counter-affidavit that along with the writ petition, the petitioner has filed a photocopy of the receipt showing payment of Rs.75,010/- deposited on 22.07.2016 via MCD online.

However, no copy of the receipt has been submitted in the Najafgarh Zone.

7. During the course of arguments, it has been repeatedly urged before us that in fact, the licence has been extended only up to 31.03.2017 as per the approval on the file, but it is conceded that the sum of Rs.75,010/- stands deposited and it is also conceded that the petitioner was never informed that despite payment, the approval is only till 31.03.2017.

8. We have also examined the receipt obtained by the petitioner who contends that the fee was paid in cash and by hand and not through an online procedure. As per the receipt, which is Annexure P-7 at page 41 of the paper-book, the licence is valid up to 31.03.2019. We have also been shown the online record of the SDMC itself, which is Annexure P-12 at page 51 of the paper-book which shows renewal of the licence till 31.03.2019. The relevant entry is as under:

License No.     Tr No.   Applicant   Unit    Address        Zone     Category    Expiry
                         Name        Name                                        Date
HTLCMWZ         504755 NAFEES        M/S     Ground Floor   Najafgarh 2          31-03-
0360722                  AHMED       YUM     Opp Gaushala   Zone                 2019
                                     YUM     Najafgarh
                                     FOODS   NEW DELHI
                                             Delhi

9. Having regard to the facts, which we have narrated hereinabove, we are of the considered view that the stand of the SDMC is not borne out from their own record. The licence placed on record shows that the renewal was granted up to 31.03.2019. The licence fee stands accepted, which was paid in cash. There is no document either filed along with the counter-affidavit, neither any stand has been taken, that

the licence was extended only up till 31.03.2017. It seems that the SDMC has acted in an unfair and unjust manner and taken the law in their own hands. The SDMC has removed a licenced vendor without any show-cause notice and granting any opportunity to the petitioner to put forth his case. It has acted in an extremely high-handed manner and deprived the petitioner of his right to livelihood. We find the action of SDMC in derogation of even the basic tenets of the principles of natural justice.

10. The maxim audi alteram partem emphasizes the need of hearing the other side. It means no man can be condemned unheard. Earlier the right was limited to judicial proceedings. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. In the case of Maneka Gandhi v. Union of India and Anr., (1978) 1 SCC 248 also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the effected party is required. The Supreme Court in the case of Canara Bank v. Debasis Das, (2003) 4 SCC 557 had extensively discussed the scope of natural justice, which is extracted in extenso below:

"12. Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, to what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of

principles of natural justice does not improve the situation, "useless formality theory" can be pressed into service.

13. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common- sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

14. The expressions "natural justice" and "legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence.

15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an

approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414 : 14 CBNS 180 : (1861-73) All ER Rep Ext 1554] the principle was thus stated: (ER p. 420) "[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. „Adam‟ (says God), „where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?‟ "

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

16. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

...

19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses

infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

...

21. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is "nemo judex in causa sua" or "nemo debet esse judex in propria causa sua" as stated in Earl of Derby's case [(1605) 12 Co Rep 114 : 77 ER 1390] that is, "no man shall be a judge in his own cause". Coke used the form "aliquis non debet esse judex in propria causa, quia non potest esse judex et pars" (Co. Litt. 1418), that is, "no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party". The form "nemo potest esse simul actor et judex", that is, "no one can be at once suitor and judge" is also at times used. The second rule is "audi alteram partem", that is, "hear the other side". At times and particularly in continental countries, the form "audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely "qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit" that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right" [see Boswel's case [(1605) 6 Co Rep 48b : 77 ER 326] (Co Rep at p. 52-a)] or in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done". Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final

decision of the case and fresh proceedings are left upon (sic open). All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated."

(Emphasis Supplied)

11. Coming to the case at hand, the action of the SDMC was lacking in the slightest vestiges of adherence to the principles of natural justice. The SDMC has removed a licenced vendor from plying his trade. Did it entail civil consequences for him? Yes, even effecting his right to earn his livelihood. Was a show-cause notice issued? No. Any hearing granted? No. Let alone any question of a reasoned order.

12. Resultantly, we allow this writ petition. The Rule is made absolute.

We direct the SDMC to release the chef-cart of the petitioner within a period of one week, as prayed.

13. The present petition is allowed with cost of Rs.2,50,000/- to be paid by the SDMC to the petitioner.

C.M. No.23523/2017 (for stay)

14. This is an application seeking interim direction for the release of the chef-cart and plying of trade. In view of the orders passed in the writ petition, no further orders are required to be passed.

15. The application is disposed of.

G.S.SISTANI, J.

CHANDER SHEKHAR, J.

SEPTEMBER 07, 2017 // /ka